Citation Nr: 0019875
Decision Date: 07/28/00 Archive Date: 08/02/00
DOCKET NO. 94-12 871 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana
THE ISSUE
Entitlement to service connection for disability of the
lumbosacral spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Wm. Thompson, Counsel
INTRODUCTION
The appellant had active military service from June 27, 1984
to October 23, 1984. His DD 214 shows 4 months and 6 days of
total prior active duty, and a total of over 5 years of prior
inactive service. His military specialty was personnel
officer for 6 years, and learning office for 1 year and 6
months. His awards and decorations include Medical
Operations and Intelligence Award.
The appellant provided testimony before a traveling member of
the Board of Veterans' Appeals (Board), sitting at Houston,
Texas, in July 1996.
This case was previously before the Board, in October 1996,
at which time the back pain issue was remanded for additional
development. The case has been returned to the Board for
further appellate consideration.
When the case was before the Board in October 1996, service
connection was granted for hiatal hernia. The RO
subsequently determined that 30 percent evaluation was in
order for this disability, and the appellant was informed in
August 1998 that he needed to make a specific NOD for the
rating assigned. He did not submit a NOD. 38 C.F.R.
§ 20.200 (1999).
In the course of this appeal the appellant moved and his
claims file was moved from the Houston, RO, to the New
Orleans, Louisiana RO.
In the course of this appeal the appellant raised the issued
of entitlement to a total rating based on unemployability,
and special adapted housing grant. These issues were denied,
and the appellant was informed of his appellant rights. He
did not submit a notice of disagreement for either issue.
See 38 C.F.R. § 20.200.
The record shows that the appellant's claim was sent to the
Board January 26, 2000.
April 19, 2000, the Board received copies of records of VA
treatment from 1998 to 2000, with no letter of explanation,
origin or waiver of consideration by the RO. 38 C.F.R.
§ 20.1304(a)(c), provides that any pertinent evidence
submitted to the Board within 90 days following notification
to the veteran of the transfer of records from the RO to the
Board, must be referred to the RO for review and preparation
of a supplement statement of the case (SSOC), absent a waiver
by the appellant or representative. In this instance the VA
medical records received are mostly duplicative of records
already in file, and the remainder are not pertinent to the
issue on appeal. No further delay for consideration by the
RO, or supplemental statement of the case is required.
FINDINGS OF FACT
1. The appellant referred to back and joint pain on
separation examination in August 1984, with no clinical
evidence of back disability.
2. The appellant's post-service back disability came to
light following an on the job injury in 1991.
3. There is no competent medical evidence of chronic back
disability related to injury during active military service.
CONCLUSION OF LAW
Chronic back disability was not incurred in or aggravated
during active military service, and degenerative changes in
the lumbosacral spine may not be presumed to have been
incurred therein. 38 U.S.C.A. §§ 1101 1110, 1112, 1113,
5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.6, 3.303,
3.307, 3.309 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran reports back injury in service, a private
physician reported in 1993 that the appellant had
degenerative changes in the lumbar spine unrelated to the
work injury in 1991, and a private physician in 1996 opined
that the degeneration in the lumbar spine was related to
injury in service in 1976. On the basis of the current case
law, which requires that this evidence be presumed to be true
for the limited purpose of establishing a well grounded
claim, his claim for service connection for residuals of a
back injury must be presumed to be plausible, and thus well
grounded. King v. Brown, 5 Vet. App. 19 (1993); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). The Board further
finds that the RO has amply discharged the duty to assist
under 38 U.S.C.A. § 5107(a).
Basically, the applicable law and regulations provide that
service connection can be established if a preexisting
disease or disability is aggravated by service, if a
particular disease or injury, resulting in disability, is
incurred coincident with service, if a disability is found to
be proximately due to or the result of a service-connected
disease or injury, or if a chronic disease, as specified in
38 U.S.C.A. § 1101, is manifested to a compensable degree
within one year thereafter. Presumptive periods are not
intended to limit service connection to diseases so diagnosed
when the evidence warrants direct service connection.
Determinations as to service connection will be based on
review of the entire evidence of record, with due
consideration of the policy of the VA to administer the law
under a broad and liberal interpretation consistent with the
facts in each individual case. Congenital or development
defects as such are not diseases or injuries within the
meaning of applicable legislation. 38 C.F.R.
§§ 3.303(a)(b)(c)(d), 3.306, 3.307, 3.309, 3.310 (1999).
Active duty means full-time duty in the Armed Forces, other
than active duty for training. 38 C.F.R. § 3.6(b)(1) (1999).
Active duty for training includes full-time duty in the Armed
Forces performed by Reserves for training purposes; and duty
performed by a member of a Senior Reserve Officers' Training
Corps program when ordered to such duty for the purpose of
training, effective on or after October 1, 1982, with respect
to deaths and disabilities resulting from diseases or
injuries incurred or aggravated after September 30, 1982, and
October 1, 1983, with respect to deaths and disabilities
resulting from diseases or injuries incurred or aggravated
before October 1, 1982. 38 C.F.R. § 3.6(c)(1)(4)(i) (1999).
Inactive duty training includes training (other than active
duty for training) by a member of, or applicant for
membership in the Senior Reserve Officers' Training Corps.
38 C.F.R. § 3.6(d)(3) (1999).
Factual Background
An examination for ROTC (Reserve Officers' Training Corps) in
October 1978 showed the appellant to be a ROTC Cadet. He had
no back complaints or disability shown on clinical
evaluation. On the report of medical history, the appellant
specifically denied having or having had recurrent back pain.
He was found to be medically qualified for appointment to
advanced ROTC, and for commissioning in the Army.
When the appellant applied for VA disability benefits in
December 1992, to include back pain in October 1984, he
submitted a copy of his periodic physical in October 1984.
Physical examination at that time showed no abnormality of
the spine. On the contemporaneously prepared Report of
Medical History, the appellant reported "some back and joint
pain." However, on the form check list he denied having or
having had in the past, recurrent back pain, and arthritis,
rheumatism or bursitis. In the physician's summary there was
reference to hernia and reflux but no back problem.
Also received in December 1992 were copies of records of
private medical treatment for back pain and disability in
1991 and 1992.
The appellant was provided VA orthopedic examination in
February 1993. He reported that while on active duty in 1984
he suffered with back and joint problems. The back and joint
pain had been occurring since 1984, became severe while
working at Wendy's, and in May 1991 he was found to have
degenerative disc disease of the lumbosacral spine.
Information recorded for clinical purposes during the
orthopedic examination was to the effect the appellant had
back difficulties as early as 1984 when stationed at Fort
McClellan. He reported falling down a hill, requiring bed
rest and medication. After service he as initially followed
by his own physician in Louisiana, to 1989, treated with
physical therapy and anti-inflammatory drugs for his back
pain. Back surgeries in 1991 and 1992 were noted. The
examination diagnoses were post-operative status L5-S1
laminectomy and disk with posterior lateral interbody fusion,
for pseudoarthrosis with posterior lateral fusion and
instrumentation; and residual post-operative symptoms
consisting of lumbosacral discomfort without any evidence
clinically of lower extremity neuropathy.
In September 1993 the appellant submitted the names and
address of 6 medical facilities/doctors, that had provided
treatment. The record shows the RO wrote letters to each
requesting medical reports.
In February 1994 the appellant submitted copies of
prescriptions to show treatment for claimed disabilities.
Most of the receipts were dated from 1991 to 1994. A receipt
dated in 1988 did not show the appellant's name. There was a
prescription for Orudis for the appellant, in May 1988.
The appellant, in his March 1994 substantive appeal reported
that his back was injured in service, that his back was
degenerating while on active duty, and that he went to the VA
in Houston but was told that VA treatment was not free and he
would have to pay to be treated.
In May 1993 the appellant submitted copies of records of
private medical treatment in 1991 and 1992. A MRI (magnetic
resonance imaging) of the appellant lumbar spine, May 15,
1991, revealed minimal posterior subluxation of L5 with
respect to S1. This appeared to be "on the basis of
degenerative changes of the L5-S1 disc." Minimal posterior
osteophytes were seen at L4-5. A hospital report dated July
31, 1991, shows the veteran reported a "work-related"
injury on March 2, 1991. He was performing maintenance work
at his employers and cleaning transmission fluid from the
parking lot for three hours which required a lot of bending
and stooping down. Following that, he lifted some heavy
trash bags. That night he experienced severe back pain with
spasms. There was pain in the lower lumbar region with
radiation. He had not responded to conservative treatment.
It was specifically noted in the section titled" "Past
Medical History" that the veteran denied any previous back
problems. A discharge summary from Methodist Hospital, in
August 1991, noted that the appellant was status post on-the-
job injury in March 1991. His persistent low back pain and
left leg pain had been unresponsive to extensive conservative
treatment, and surgery was performed for HNP (herniated
nucleus pulposus). A June 1992 record shows surgery for
pseudoarthrosis, L5-S1.
A July 1993 letter from Social Security Administration (SSA)
shows that the appellant met the medical requirements for
Supplemental Security Income (SSI).
J. Denno, M.D., in a September 21, 1993 letter, noted that
the appellant had been a patient since March 15, 1991, that
he sustained a work related injury on March 2, 1991 and was
subsequently found to have a herniated disc. It was noted
that a MRI prior to surgery showed some degenerative changes
at L5-S1, and those degenerative changes preexisted his work-
related injury. According to Dr. D., disc degeneration was
something that occurred gradually over time, and was
unrelated to any acute trauma.
In March 1994 Our Lady of Lourdes medical center reported
that they had no records on the appellant "since 1988."
Records (copies) from J. Denno, M.D., received in March 1994,
note the appellant's continuing back and leg pain from 1991
to 1994. In March 1992 it was indicated that he was
developing a pseudarthrosis, and in June 1992 it was believed
that the pseudarthrosis was responsible for some of his
ongoing back pain. In 1992 he was referred for physical
therapy. In January 1994 it was recorded that the appellant
related involvement in a motor vehicle accident in January
1994. His complaints included back, neck, and right shoulder
pain.
Southwest Texas Methodist Hospital, in April 1994, submitted
copies of medical records for the appellant in 1992 and 1993.
The copies were essentially duplicative of material
previously received
The appellant, in hearing testimony in July 1996, reported
that he fell down a steep hill during training at Fort
McClellan, and his back problem occurred when he fell down
the hill. He was hospitalized, x-rays were taken, and he was
on profile for no stooping, bending, kneeling or prolonged
standing from the second week to the end of the military
police course training. Due to his medical problems he was
not allowed to come back on active duty. He noted that his
physical for separation was annotated on the slip and "they
knew I had back pain." He stated that if an MRI (magnetic
resonance image) had been taken then maybe it would have
showed the extent of the injury be he was not sure whether he
had degenerative back problem before the injury in 1991 or
not but he did rupture a disc in 1991. His doctor stated
that it would have to be over a period of years for a disc to
herniate and degenerate before it actually would rupture so
the back problems occurred while the veteran was on active
duty, Transcript (t.) pp. 4, 5, 6 and 7. After service he
bought over the counter medications for his back pain. He
was found disabled by Social Security Administration in 1993,
and totally disabled by a doctor in May of this year. He was
presently unable to obtain any kind of employment, T. 7 and
8. He tried to get medical treatment for his back by the VA
in 1985 but was refused, and that was the only treatment
until 1991, T. p. 11. Dr. Denno explained in 1991 that a
disc would not rupture just overnight, that would over a
period of years it would degenerate before it actually
herniated or ruptured. The veteran had no statement from Dr.
Denno, T. pp. 12 and 13.
Received at the time of the hearing, with waiver of
consideration by the RO, were copies of military records
variously dated in 1984. An August 22, 1984 sick slip showed
the box for illness checked, not the box for injury, and
there was no line of duty determination shown for any injury
incurred while on active duty. The disposition of the
appellant was "other" not "hospital," "sick bay," or
"quarters." Written on the slip were no turning and
twisting or bending for 72 hours, and referral to physical
therapy for further problems. A September 1984 appointment
record shows that the appellant had an appointment with a
doctor at the surgical clinic, apparently for endoscopy. A
September 1984 assessment of the appellant's participation in
his military training course made reference to "medical
problems" while training.
Received in October 1996 were copies of records showing
physical therapy for the appellant in 1992. An October 1992
evaluation record noted initial evaluation for 6 weeks of
physical therapy, at the end of September 1992. It was
recorded that the appellant reported injury in March 1991
when he slipped and fell which scrubbing a parking lot. His
previous medical history included a motor vehicle accident in
1988 with reported whiplash injury.
Received in October 1996 was a copy of a letter from D.
Gutzman, M.D., addressed to the appellant, dated October 17,
1996. The letter was to the effect Dr. Gutzman had reviewed
the appellant's:
appeal through the army for disability. It
is medical opinion that this injury of 1976
would have been the beginning of the
degeneration which was found in this
patient's lumbosacral spine area. This type
of problem does take a number of years to
show up on testing and certainly as stated
does not happen over night.
In October 1996 the appellant submitted additional names of
treating physicians and medical facilities.
Received in March 1997 were copies of records of private
medical treatment for the appellant. Dr. Gutzman, in October
1995 noted injury to the appellant when a car backed over the
appellant. The impressions were cervical radiculopathy and
lumbosacral radiculopathy. In March 1996 there was
impairment evaluation of the appellant's lumbar and cervical
radiculopathy. It was noted that in October 1995, while
working for Circle K, a car backed over the appellant.
Previous back surgeries in 1991, 1992, and 1993 were noted.
There was follow-up on the appellant by Dr. Gutzman in 1996
to January 1997.
The appellant, in a statement in March 1997, reported that in
July 1976, during ROTC he fell down a steep slope, and was
treated for a twisted left ankle. In October 1984 he was
treated for back and joint pain with medication and all
during his tour at Fort McClellan, Alabama, he was on a
military profile with no twisting, lifting, stooping,
crawling or kneeling, due to back injury and hiatal hernia.
He reported that "[T]his caused the degeneration of my
spinal problem."
Copies of records from the South Texas spinal Clinic,
received in March 1997, contained many duplicate records from
Dr. Denno, and follow the appellant from March 1991 to
September 1994. A March 15, 1991 initial evaluation noted
that on March 2, 1991, the appellant sustained injury while
doing maintenance type work cleaning transmission fluid in a
parking lot for approximately 3 hours. A lot of bending and
stooping was required. Following that he lifted heavy trash
bags. That night he experienced severe back spasm. The
appellant denied any previous history of back problems or
injuries. Physical examination showed little more than some
tenderness of the lumbar spine. It was noted that x-ray
studies of the lumbosacral spine from Baptist Memorial
Hospital on March 4th were reviewed and found to be negative.
The clinical impression was lumbar strain/sprain. Physical
therapy was recommended. Dr. Denno's name was on the record.
In March 1997 the RO attempted to contact Dr. B. Robbins,
with no response.
Received in April 1997 were copies of records of treatment
for the appellant by H. Schilling, M.D., in 1996. Dr.
Schilling noted that the appellant was first seen January 15,
1996, following a motor vehicle/pedestrian accident in
October 1995. The appellant reported being hit in the mid
back and left side of the head.
Received in May 1997 were copies of medical records for the
appellant from South Texas Methodist Hospital. The period
covered was 1991, 1992, and 1993. The records were either
duplicative or redundant.
Also received in May 1997 were copies of records from San
Antonio Functional Assessment and Restoration Center, showing
assessment of the appellant in 1992. The October 5, 1992
initial evaluation noted that the appellant slipped and fell
while scrubbing a parking lot in March 1991. It was also
recorded that his medical history included a motor vehicle
accident in 1988, with whiplash injury. The appellant was to
enter a 6-week physical-strengthening program.
Received in file some time in 1997 were copies of records
related to the appellant's back injury and disability. The
records were from doctors, an insurance company, and a state
workers' compensation commission. The records essentially
related to the extent and evaluation of the back injury in
March 1991. An impairment center history and physical August
23, 1993, noted that the appellant slipped and fell in a
Wendy's parking lot in March 1991. Previous accidents were
denied, and a history of the back injury was given. The
records do not address injury in service or prior back
disability.
Received in July 1997 were copies of records of treatment for
the veteran in March and April 1991 at Northeast Baptist
Hospital. The March 4, 1991 emergency assessment record
noted pain at the base of the neck radiating to mid-back and
mid-back burning pain radiating down into the extremities.
It was noted there was injury to the back while lifting and
bending. The March 4, 1991 x-ray report showed normal lumbar
spine. In April he was seen for pain from the left shoulder
to the left lower back.
The appellant was provided examination and evaluation by Dr.
R. Po, at the Orthopedic Clinic of Avoyelles, December 4,
1997. The appellant's claims file was provided and reviewed
prior to the examination. Medical history provided by the
appellant was to the effect he was in the Army Reserve ROTC
program in 1976, and placed on active duty status for short
periods of time in 1978 at Fort Sam Houston when he became a
2nd Lieutenant. In 1979 he was on active duty for 2 weeks,
and in 1981 he was activated in the Medical Service Corps for
5 months at Fort Sam Houston. In 1983 he was at Fort
Benjamin as a 1st Lieutenant, and served for 5 months. While
at Fort Bliss in 1976 he was on a reconnaissance mission
carrying a full pack and rifle when he fell down a hill and
sustained an ankle sprain. He was seen at sick call and x-
rays were taken of his ankle and, he believes, his back. The
records were lost, and on his discharge physical he indicated
that he had back pain. Dr. Po noted that in the records
available, there was no checkmark in Section 11, indicating
the back condition was symptomatic. The history of the back
injury in March 1991 was recited. The physical examination
diagnoses were post-operative lumbar laminectomy and fusion
with persistent pain in back with right leg radiculitis; and
history of esophagitis and hiatal hernia.
The examiner reported that the appellant indicated that while
in the Army reserve and ROTC he was on short periods of
active duty that included parachute landing fall practices
and physical training. He denied any back injury or pain at
that time. He indicated that the time he fell down the slope
at Fort Bliss in 1976 was the cause of his pain. It was Dr.
Po's opinion, "within medical degree of certainty," that
degeneration may have occurred after discharge from active
duty and that the injury sustained in 1976 and the
degeneration noted in 1991 "was not directly related.
Therefore, it is least likely than not, that the degeneration
of the lumbar spine, as noted by x-ray, was not caused by
Active Duty Service."
Received in November 1998 were copies of medical records for
the appellant from Dr. Gutzman, showing treatment from 1995
to 1998. An October 17, 1996 letter to Risk Management,
noted an office visit that date, and that comprehensive
review of the appellant's chart included Dr. Neely's report
which did not recommend surgical intervention for the neck.
VA outpatient clinic records for the appellant in 1998 and
1999, reflect treatment for a variety of medical problems. A
psychiatry supportive therapy record dated February 1, 1999
noted that the appellant reported back injury in service in
1976 when he fell down a hill. However, "he did not have
problems until he injured his back in `91 on the job."
Analysis
In order to comply with the statutory requirements of
38 U.S.C. § 7104(d) to provide "reasons or bases" for its
decisions, the Board must analyze the credibility and
probative value of the veteran's evidentiary assertions. The
Board must account for the evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its
rejection of any material evidence favorable to the veteran.
Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet.
App. 425 (1996). The Board has "the authority to discount
the weight and probity of evidence in the light of its own
inherent characteristics and its relationship to other items
of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (1997).
In Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), the
Court held that credibility can be impeached generally by a
showing of: "interest, bias, inconsistent statements, or,
to a certain extent, bad character."
The appellant has variously alleged periods of active duty
totaling over 10 months, prior to 1984. The competent
evidence of record shows only a little over 4 months of prior
active service before 1984. The appellant has not provided
specific dates of active duty or documentation of such active
service. Although the appellant has referred to an injury
during ROTC training in 1976, ROTC is not active service.
38 C.F.R. § 3.1 (1999). There is no indication that the
veteran had any active service prior to 1978. On the other
hand, there is evidence that the veteran had no active
service prior to the examination in 1978 for entry into
service.
There is no doubt that the claimant has had a serious back
disorder since 1991. He has advanced a theory of entitlement
that his current back disability had its origins in service.
He specifically has referred to two episodes in service or
claimed service. On his original claim in 1992, he reported
back pain in September and October 1984. In hearing
testimony in 1996, he reported falling down a hill in 1984,
injuring his back and receiving treatment. However, starting
with a statement from Dr. Gutzman in October 1996, the
appellant alleged back injury in 1976, and beginning in 1997,
the 1976 back injury reportedly happened when he fell down a
hill.
The Board will first address in detail the allegation of back
disability related to injury in 1984. The appellant has
asserted that the August 1984 sick slip, reference to his
medical problems in the assessment of training, and reference
to back and joint pain on examination in October 1984,
support his claim of back injury. He maintains that it is
this back injury that accounts for the degenerative changes
noted on MRI in 1991, and noted by Dr. Denno to have
preexisted the back injury in 1991.
In assessing these assertions, the Board notes the veteran
has reported duty in the medical corps and his military
awards include a Medical Operations and Intelligence award.
His service records also show, however, that most of his duty
was as a personnel officer and learning officer. He reports
no post-service medical training. The Board concludes that
he is not shown to possess the medical expertise to determine
the diagnosis of his various medical symptoms or to provide a
medical opinion as to their relationship to service.
Accordingly, his lay assertions as to medical causation are
of no probative value. Espiritu v. Derwinski, 2 Vet. App.
492 (1992).
In hearing testimony in July 1996, the veteran reported that
he injured his back when he fell down a steep hill during
training at Fort McClellan. He was hospitalized, x-rays were
taken, and he was on profile for no stooping, bending,
kneeling or prolonged standing from the second week to the
end of the military police course training (see T. pp. 4 and
5). The sick slip submitted by the appellant, however, only
shows illness, not injury, and no turning, twisting, or
bending for 72 hours, not the weeks indicated by the
appellant. The appellant also reported being hospitalized
but the sick slip does not show that he was hospitalized for
a back disorder. The Board notes that he was referred to the
surgery clinic for endoscopy. The military course assessment
record only refers to medical problems and is non-specific as
to what the problems were. In a prior determination the
Board found that service connection for a hiatal hernia was
warranted based upon these records. In other words, the
record does provide an identification of the medical problem
for which he was treated. In this context, the Board finds
that great weight must be accorded to the separation
examination in October 1984. That evaluation found no
disability of the spine. Moreover, while the appellant noted
some back and joint pain, he specifically denied having
recurrent back pain, and in the physician's summary area of
the report of medical history, the appellant's hiatal hernia
and reflux were noted but there was no reference to any back
problem. This shows that the veteran had more than a cursory
review and the absence of any indication of a back disability
is telling.
The statement by Dr. Denno in 1993, that the degenerative
changes in the appellant's lumbosacral spine, found in 1991,
preexisted the injury in March 1991, does not support the
appellant's report of back injury in 1984, resulting in back
disability. Dr. Denno's statement demonstrates only that the
degenerative changes could have come from any point in time,
or accumulated from several points in time prior to 1991. It
does not associate the changes with the appellant's short
periods of active duty. In 1991 the veteran was 35 years
old; in those 35 years he had spent far less than a year on
active service. The Board finds far more probative the fact
that the contemporaneously recorded statements of medical
history in the early 1990's, provided in the context of
treatment and long before a claim for compensation benefits
relating to active service, consistently show the claimant
denied prior back injuries or problems that could have
stemmed from his period of active service. On the other
hand, a 1992 evaluation reflects that he made reference to a
motor vehicle accident and whiplash injury in 1988.
With respect to the alleged injury in 1984, the Board finds
that the greatest weight must be assigned to the contemporary
records from service and the initial statements of medical
history provided in the context of treatment. This evidence
fails to show any back injury in service. It demonstrates
his back was normal at the separation examination in 1984 and
that he did not recall either a back injury or any persistent
back symptoms prior to 1991. His subsequent statements
concerning the back injury and a continuity of symptoms are
inconsistent with his own prior recorded statements of
medical history and thus the Board finds that the former are
not entitled to any probative weight.
In the alternative and more recently the appellant has
alleged a back injury in 1976 when he fell down a hill. The
first problem with this assertion is that the episode, even
if it happened, did not occur during a period of active
service. The evidence of record from the service department
provides no support for a period of active service in any
form prior to 1978 when he was commissioned from ROTC.
However, even it were assumed that he would show active duty
or active duty for training in 1976, the record shows a
normal back on examination in 1978. Further, as noted above,
his statements of medical history recorded in the early
1990's contradict any history of a back injury in 1976 just
as they do the history of a back injury in 1984.
The statement from Dr. Gutzman in support of the appellant's
claim is deficient in several accounts. There is no
indication that Dr. Gutzman had the benefit of the veteran's
complete medical records and claims file for review. The
lack of reference to pertinent evidence among those records,
such as the data recorded at the time of the 1984 separation
examination, the reference the 1988 injury or even the
alleged 1984 injury, make this clear. Thus, the Board must
conclude that his opinion was based solely on the appellant's
account of injury and treatment. The history of injury in
1976, as told to Dr. Gutzman was not set fourth for
comparison with the appellant's other stories on how his back
was originally injured and treated. As an example, Dr.
Gutzman did not have the benefit of the appellant's service
medical records, which were negative for back injury or
residual disability, including the examination in 1978, 2
years after the alleged back injury, or the examination in
1984, which showed no back disability. A medical opinion is
inadequate when it is a general conclusion based on history
furnished by the appellant and on unsupported clinical
evidence. Black v. Brown, 5 Vet. App. 177 (1993). An
opinion based upon an inaccurate factual premise has no
probative value. Hadsell v. Brown, 4 Vet. App. 208, 209
(1993). Accordingly, the Board finds that no probative
weight can be assigned to Dr. Gutzman's opinion because it is
not based upon an accurate history.
While the Board finds the positive evidence in support of the
claim is entitled to no or minimal value, the Board must
further conclude that there is negative evidence against the
claim entitled to great probative weight. This negative
evidence includes the examination of 1984 that disclosed no
back disability. It also includes the statements of medical
history recorded in the early 1990's, prior to the claim for
benefits, that deny both prior injury in the time frame of
service or a continuity of symptoms since any alleged injury
in service. The Board also finds that great probative weight
must be accorded to the medical opinion by Dr. Po in 1997.
Dr. Po reviewed the appellant's claims file and medical
records, and interviewed and examined the appellant. Dr.
Po's opinion was that the degeneration noted in 1991 was not
directly related to any injury in 1976. The Board concludes
that Dr. Po's unequivocal medical opinion is afforded greater
probative value than the unsupported opinion by Dr. Gutzman.
Given the above fundamental facts, the benefit of the doubt
doctrine is not for application because the overwhelming
weight of the evidence is against the claim.
ORDER
Service connection for disability of the lumbosacral spine is
denied.
Richard B. Frank
Member, Board of Veterans' Appeals